STATE OF TASMANIA v COREY ANTHONY BRODERICK 16 AUGUST 2024
COMMENTS ON PASSING SENTENCE (RE-SENTENCE) JAGO J
I have before me an application for breach of a suspended sentence, pursuant to s 27 of the Sentencing Act 1997. The respondent does not show cause in respect to the application but submits, through his counsel, that it would be unjust for me to activate all of the period of suspended imprisonment.
On 7 December 2022, I sentenced the respondent for the crime of assault to 14 months’ imprisonment, wholly suspended on condition that for a period of two years he not commit another offence punishable by imprisonment. I also ordered that he be subject to a Community Correction Order, including an order that he perform 100 hours of community service. The facts of the assault are set out in my Comments on Passing Sentence of 7 December 2022. I do not stay to repeat them, but in summary it was a family violence offence committed against the respondent’s partner. He struck her to the head with an open hand. It was a hard strike and it caused a ruptured ear drum and skull fractures. The complainant was required to undergo remedial surgery.
At the time I sentenced the respondent, he was 35 years of age. He had a long history of criminal offending, including many prior convictions for offences of dishonesty, driving offences, bail offences and offences under the Misuse of Drugs Act. His prior criminal history in respect to matters of violence was minimal. In the lead up to my sentence of 7 December 2022, the respondent had spent some time in custody. I was told that following that period, he had made a concerted, and largely successful, endeavour to address his drug addiction.
At the time I sentenced the respondent, I determined it was appropriate to place emphasis upon his rehabilitation given the meaningful steps I was, at that point, satisfied he was undertaking. I was of the view that sending him to prison may adversely impact upon the positive steps that he was taking towards rehabilitation.
Unfortunately, since the imposition of my sentencing order, the respondent has re-offended in a number of ways. On 26 September 2023, the respondent was convicted in the Devonport Magistrates Court of three counts of breach of Family Violence Order and four counts of breach of bail conditions. Those offences occurred in May 2023, so within six months of the period of suspended imprisonment being imposed. The breaches must have been of some significance because the respondent was sentenced to three months’ imprisonment for the offences. There was, at that time, an application for breach of suspended sentence raised. The Magistrate determined that it was unjust to activate the suspended term of imprisonment and, pursuant to s 27(4C)(d) of the Sentencing Act, made no order. The fact the application was before the Court should have been a very salient reminder to the respondent that he needed to comply with his obligations under the suspended sentence strictly. Rather than doing that, the respondent went on to commit further offences.
On 27 June 2024, the respondent was convicted of the offences of burglary and stealing. Those offences were committed on 17 December 2023, so a little over 12 months after the imposition of the suspended sentence. Those offences were serious. They involved the respondent and others entering a service station by smashing the front window with a sledgehammer and stealing a quantity of cigarettes, SIM cards, steering fluid, engine oil and a charging cable. At the time one of the offenders was armed with a loaded shotgun. It was then blatant criminality. The defendant was sentenced to five months’ imprisonment for these crimes. A further application for breach of the suspended sentence was before the Magistrate. It was sent to this jurisdiction for determination.
The respondent has then, on two separate occasions, committed offences that are in breach of the suspended period of imprisonment. He has demonstrated, in my view, an ongoing attitude of disobedience towards the law. It seems he has made little effort to comply with the terms of the suspended sentence. The first lot of breaching offences occurred within six months of its imposition, and the second breaching offences were committed a little more than 12 months into the term of suspension.
The respondent’s counsel submits that I should not activate all of the suspended sentence because it would be unjust to do so. In particular, he points to the difference in the nature of the offending and further submits that it would be a disproportionate response to activate the period of suspended imprisonment given the nature and gravity of the breaching offences. I disagree. The respondent has been committing crime since he was a youth. Since becoming an adult in July 2005 he has almost constantly been before the courts. He has received periods of suspended imprisonment in the past and has breached the same. The defendant has demonstrated a great resistance, and lack of commitment, to becoming a law abiding individual.
On an application of this nature, the broad question is whether the suspended sentence is having its desired effect in terms of rehabilitation. It could not be sensibly argued in the respondent’s case that it is. The respondent has continued to commit criminal offences. There is nothing before me to suggest that any rehabilitation he has embarked upon has been successful in terms of changing his attitude towards compliance with the law. Moreover, it seems the respondent’s compliance with the Community Corrections order has been poor. He has only completed 13 hours of the 100 hours that were imposed upon him. I accept during this time the respondent has spent some eight months in custody but that, in itself, underlines why this suspended sentence must now be activated. If during the life of the suspended sentence the respondent has behaved with such a level of criminality that he is required to serve eight months in prison, it can hardly be suggested he has reformed. The respondent was afforded an additional opportunity when he was before the Magistrates Court in September 2023. Rather than take that up, he reoffended three months later.
If a defendant wastes an opportunity offered by the Court by reoffending, then, as a general rule, a suspended sentence should be activated. I take into account the material outlined in a letter written by the respondent which his Counsel tendered to the Court. I appreciate that his step father is very ill, and his son has his upcoming grade 6 leaver’s dinner, but these are factors which were well known to the respondent when he committed the breaching offences. If these factors were genuinely the motivation for change that the respondent claims, then when he was provided with the opportunity of not having the suspended sentence activated in September 2023, he should have done all that was necessary to effect that change. Unfortunately, it is now a case of too little, too late. In my view, if I do not, at this point, activate the period of suspended imprisonment it would result in the undermining of the integrity of the system of suspended sentences and adversely impact the extent to which they may deter future offenders.
In the absence of evidence to suggest the suspended sentence is having its desired reformative effect, and indeed a body of evidence to suggest the contrary, there is nothing about the nature, circumstances or gravity of the breaching offences which justifies the conclusion that activation of the suspended sentence is unjust.
The application is granted. I order the 14 month period of imprisonment imposed on 7 December 2022 but held in suspense, be activated and that the respondent be required to serve it. That sentence of imprisonment will commence as at 17 May 2024. I order the respondent be eligible for parole upon serving one half of that period of imprisonment.